Making your power of attorney (POA) documents helps ensure someone you trust has the authority to make decisions on your behalf about your property, finances, personal life, and medical care.
These documents can provide a lot of peace of mind for the future, especially since you can specify that your attorney has authority in cases of emergency or if you become incapacitated and are unable to make those decisions for yourself.
But how do you make sure your POA documents are accepted by financial institutions, healthcare facilities, and other organizations? In this article, we’ll cover the requirements for power of attorney documents to be legal, when an attorney has the authority to act, and when POAs can be refused.
How to make your power of attorney legal
Signing requirements for POA documents vary by province. When you make your documents with Willful, we provide instructions to help ensure your documents are legally valid.
The first step to ensuring your POA will be accepted at a bank, a hospital, a long-term care facility, or somewhere else is to make sure it’s legal. These are the general rules for your POA to be legal in Canada:
- The document must be a printed document.
- You must be of sound mind and over the age of majority in your province.
- You must sign your document in the presence of two valid witnesses and they must sign to confirm they have witnessed your signature.
- The signatures must be in wet ink (not digital) and at the very end of the document.
Who can’t be a witness
The following people cannot be witnesses for your power of attorney:
- Your spouse, common-law partner, child or someone you treat as your child
- Your attorney, or your attorney’s spouse or partner
- Anyone who has a “guardian of property” appointed for them by a court because they are not able to manage their property due to medical reasons
- Anyone who has a “guardian of the person” appointed for them by a court because mentally they are not able to make personal care decisions
- Anyone under the age of majority in your province or territory
Who can be a witness
People you’ve known for a long time, like family, friends, or coworkers, can be great choices as witnesses. So long as they are unrelated to the power of attorney role but know you well and can likely be counted on to provide a testament that you signed the documents if needed.
Exceptions for witnesses
In Manitoba, section 11(1) of The Powers of Attorney Act states that a witness to the execution of an enduring power of attorney must be at least one of the following;
- a lawyer entitled to practice in the province;
- a notary public appointed for the province;
- a judge of a superior court of the province;
- a justice of the peace or provincial judge;
- a duly qualified medical practitioner;
- an individual registered, or qualified to be registered, to solemnize marriages;
- a member of the Royal Canadian Mounted Police; or
- a police officer with a police service established or continued under The Police Services Act
In British Columbia, Nova Scotia, and New Brunswick, if you want your attorney to have the authority to sell or buy land for you, The Land Titles and Survey Authority requires that your enduring power of attorney be notarized. Notarization is not required to make your POA legal. It’s only necessary in these provinces if your attorney is trying to sell or act on your behalf.
Acceptance of power of attorney documents
Generally, POAs are accepted as long as they are legally valid and relevant to the presented institution.
Sometimes, banks or other institutions have procedures for validating POAs, which can slow down the process. These processes are to make sure the POA is legal and to protect both the account holder and the bank from fraud.
Bank POAs
Some banks or other financial institutions have their own power of attorney documents. According to the Canadian Bankers Association, it is not policy for any bank to insist that clients only use the bank’s POA form.
Unlike a POA made with Willful, a bank POA may only give the appointed attorney power over assets in that bank (and possibly only allow them to make transactions with that bank) and nowhere else.
If you already have your own POA that gives your attorney authority over all of your financial affairs, including accounts with your bank or financial institutions(s), you likely won’t need to use a bank POA form.
Additionally, if you make your own POA, you can draft it to specifically stake that it does not revoke any prior POA that you have with your bank, if you would like to have both.
When can a bank or institution refuse to accept power of attorney?
A bank or other institution may refuse your power of attorney or deny your attorney authority if:
- Your POA does not meet legal requirements for the bank's region (ex. Your POA was made based on requirements in another province or territory from where your accounts are located), or
- Your POA is not applicable to the institution (ex. Delivering a power of attorney of personal care to a bank, or a power of attorney of property to a hospital), or
- Your POA limits what your attorney can do (ex. deposit funds to and withdraw from your bank account) and your attorney tries to do something else (e.g. taking out a loan in your name or turning your account into a joint account), or
- Your POA appoints joint attorneys and only one is present, or
- Your POA limits when it can be used and that time has passed, or
- Your POA attempts to act before they can*, or
- You have more than one POA and the instructions are in conflict, or
- Your attorney tries to use their authority after you pass away (POAs are only valid while you are alive), or
- Your attorney tries to appoint or change the beneficiaries on any of your investment accounts, or
- Your attorney attempts transactions for their own benefit (such as writing themselves large cheques, making large cash withdrawals, or transferring large amounts from your account to theirs), unless your POA document allows them to use your money for their own benefit, or
- The POA has been overridden and is no longer valid
The POA refusal policy of Scotiabank
Scotiabank’s power of attorney acceptance policy states that they may refuse a POA if the grantor or attorney cannot provide;
- One piece of original, valid and current government photo-issued identification or two original, valid and current identification documents from independent and reliable sources, and
- A signature for the attorney, as well as an original or notarized copy of the power of attorney
The POA refusal policy of CIBC
CIBC has a setup process to appoint an attorney, and without following this process, a POA may or may not be refused. The steps are as follows;
- Contact CIBC to make an appointment
- Confirm that you wish to set up the power of attorney. If the appointment is due to a lack of capacity, the appointed attorney(s) must provide proof of mental incapacity to bypass this step.
- Attend the meeting with your appointed attorney(s) and the appropriate documents, which include: some text
- An original power of attorney document dated within the last 30 days, or The CIBC power of attorney form
- Proof of incapacity, if the client is mentally incapable
- The attorney(s) and the grantor must meet existing CIBC standards for identification with two pieces of acceptable identification, one of which must be government-issued and include a photo. They must also identify their birth dates and occupations.
The POA refusal policy of Royal Bank of Canada (RBC)
According to RBC’s Personal Deposit Accounts Disclosures and Agreements document, refusal is at their own discretion and they may;
- Refuse to accept the appointment if it is not satisfactory to them, or
- Refuse to honour any transaction made by an attorney, or require satisfaction of certain conditions before honouring a transaction
The POA refusal policy of Toronto-Dominion Bank (TD)
TD’s policy for refusing to accept a POA or refusing to allow the attorney to complete a transaction is based on situations where;
- They cannot verify your identity or that of your attorney, or
- The POA provided does not meet the provincial or territorial requirements, or
- Your attorney’s transaction instructions are outside the terms of the POA;
- Your attorney’s transaction instructions do not appear, to TD representatives, to be in your best interest or TD has concerns about potential financial abuse; or
- Your attorney's instructions are in conflict with one or more of TD’s policies or procedures
The POA refusal policy of Bank of Montreal (BMO)
BMO’s power of attorney guide states that they cannot accept a POA that;
- Would require BMO to monitor the attorney’s activity; or
- Is unclear about the attorney’s authority; or
- Is for use with another financial institution
What happens if my bank refuses a valid POA?
If your bank refuses your legally-valid POA because they believe it is invalid, you should ask to speak with a manager or their legal team to reiterate that your POA is valid and they cannot refuse it without just cause.
If the issue persists without the bank offering proper reasoning for why they are refusing your POA, you may need to ask a lawyer for advice.
When can a power of attorney get activated?
Typically, a power of attorney can be activated differently depending on what type of POA it is.
Power of attorney for personal care
Can only be activated when you (the ‘grantor’ or ‘donor’) lack capacity.
Power of attorney for property
Unlike an POA for personal care, a POA for property may be created to activate in different scenarios:
- The attorney has authority as soon as the power of attorney document is legally executed, or
- The attorney only has power if you (the ‘grantor’ or ‘donor’) are declared to lack capacity, or
- The attorney only has power on a specified date or for a specific period of time
Can a power of attorney transfer money to themselves in Canada?
If the power of attorney document states that it is allowed, an attorney may be allowed to transfer money from the grantor’s account into their own.
However, if it is not stated in the POA document, a bank or financial institution may refuse the transfer.
How to make sure your Willful POA documents are accepted
Willful works with lawyers in every province to ensure that your POA documents are created based on the legal requirements of your province. We also partner with Scotiabank, CIBC, Wealthsimple, and many other organizations to help make planning easier for Canadians.
By following the instructions that come with your documents, your POA documents will be legally valid and much more likely to be accepted across different institutions, including your bank, credit union, or hospital.
Plus, if you ever need to move to a different province, you can update your Willful documents for free to make them once again legally valid in your new jurisdiction.
The benefit of power of attorney documents
Life is unpredictable and no one knows exactly what tomorrow may bring. Having power of attorney documents in place can help give you peace of mind, knowing that someone you trust has the ability to make medical and financial decisions for you should you ever need them to.
